State of Washington v. Matthew James Lowe ( 2024 )

FILED
JULY 23, 2024
In the Office of the Clerk of Court
WA State Court of Appeals Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 39588-0-III
Respondent, )
)
v. )
)
MATTHEW JAMES LOWE, ) UNPUBLISHED OPINION
)
Appellant. )
COONEY, J. — After pleading guilty to four sex offenses, Matthew Lowe appeals,
contending the State breached the plea agreement. Mr. Lowe also appeals the trial
court’s imposition of several legal financial obligations (LFOs).
We affirm Mr. Lowe’s judgment and sentence and remand for the trial court to
strike the victim penalty assessment (VPA), the DNA collection fee, and the community
custody supervision fees from the judgment and sentence.
BACKGROUND
Mr. Lowe sexually abused Victim A1 for five years, from when she was 13 years
old until she disclosed the abuse at age 18. After Victim A’s father passed away, Mr.
1
Although this court’s general order of September 22, 2023, requires reference to
victims by their initials, the trial court record consistently identifies the victims as A, B,
and C. For clarity and consistency, this memorandum follows the convention used by the
parties in the trial court.
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Lowe assumed a father figure role to Victim A and abused his position of trust to gain
access to her. The abuse was documented through innumerable images, many of which
Mr. Lowe shared with a friend. Mr. Lowe further manipulated Victim A to convince
Victims B and C, who were also children, to share sexually explicit images of themselves
with him. Due to the egregiousness of the facts underlying Mr. Lowe’s convictions, the
superior court judge “was worried for [the] mental health of people in the courtroom” had
the case proceeded to trial. Rep. of Proc. (RP) at 339.
Mr. Lowe initially exercised his constitutional right to a jury trial. However, the
first trial abruptly ended in a mistrial when one of the prospective jurors tainted the
venire. Several months later, at the start of the second trial, Mr. Lowe and the State
entered into a plea agreement following heavy negotiations. The plea involved the State
dismissing three of the seven original counts, dismissing all aggravators, and the State
and victims jointly recommending 210 months of confinement, the low-end of the
standard range. In exchange, Mr. Lowe agreed to plead guilty to the remaining four
counts and accept forfeiture of all seized property. To his credit, Mr. Lowe voluntarily
entered sex offender treatment almost immediately after his arrest, and his presentence
investigation indicated an ongoing willingness to engage in treatment while incarcerated.
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Because the primary issue is whether the State breached the plea agreement by
undercutting the agreed sentencing recommendation, the State’s recommendation is
reproduced below.
[T]here is so much more to this case than what was contained in that
Probable Cause Affidavit or what was contained in the original trial
memorandum that was submitted by the state. The charges in this case
primarily relate to one victim who we have referred to in all materials as
Victim A. . . . But I think something that has been lost is that she is not the
only victim in this case. There are two other victims.
And from the state’s perspective one of the things that is so
dangerous about Mr. Lowe is that he was able to present himself as an
upstanding citizen of Benton County, a man who participated and led
groups in the church, a man who was a dedicated husband and father. But
he was also a man who utilized those roles to facilitate his contact with
Victim A. And Victim A then reached out to other friends and ended up
introducing them to Mr. Lowe. And Mr. Lowe used her to do that.
And the Victim Impact Statement that your Honor has before you,
Victim A is so introspective and has talked about all of the many far-
reaching impacts that Mr. Lowe’s conduct had on her and her life, but I did
notice one of the things that was missing was the introduction of Mr. Lowe
to these other two young ladies. And I have no doubt that that is because
that is simply crushing to Victim A. Because not only was she herself
engaged in this awful, awful ongoing cycle of physical and sexual abuse
with Mr. Lowe, but she also made it possible for him to victimize these two
other girls. And obviously she was 13 years old at the time. She had no
idea what she was doing. And it’s now only as an adult that she can look
back and see the impact on herself but also the impact on the other
individuals who were involved.
Mr. Lowe made Victim A complicit in what he was doing. And I
have no doubt that that fact is one of the most searing and difficult things
for Victim A to continue to process. And it was evident in our
conversations with her throughout this case that that was incredibly difficult
for her.
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This was not something that only went on for a year or two years
while she was a teenager. It went on for an extended period of time. And
all the while this was going on, Mr. Lowe was being lauded as an
outstanding community member, who took care of Victim A. Victim A’s
own mother trusted the defendant to pick her up from middle school.
That’s how many of the initial sexual abuse incidents and physical abuse
incidents occurred. He actually picked her up from middle school. And it
went on from there.
Mr. Lowe is the type of individual that we cannot have in our
community, because he is so good at manipulating others and making them
believe that he is the man that he presents to other adults in our community.
But Victim A is the individual who saw the other side, as are Victim B and
Victim C.
In resolving this case, the state heavily weighed the impact that a
trial would have, not just on Victim A but also on Victim B and on Victim
C. And ultimately, despite the gruesome nature of this case, as your Honor
is fully aware from all of the documents that have been submitted, we came
to the conclusion that it was appropriate for us to go forward and to
recommend the bottom end of the range on Count I, which is the rape of a
child in the second degree count, and we believe that that is very
appropriate.
During the course of the investigation of this case, Victim A
continually talked about how Mr. Lowe would tell her that he was doing
things for her benefit. One example, and there was quite a bit of forensic
material that confirmed this, he would do things like telling her she had to
go to bed at a certain time. So he would have her take a picture of the
digital clock in her kitchen to confirm that she was at home and that she
was going to bed. He would also require her to do things like schoolwork,
things that uninvolved individuals would believe were very positive things,
things that [Victim A]’s mother even, the Victim A’s mother believed were
positive things. Ultimately, your Honor, the only positive thing that Mr.
Lowe has ever done for Victim A is take responsibility for what he did.
And that is why we are recommending 210 months as well.
We’re recommending the top end of the range on Count III, which is
rape of a child in the third degree. That’s 60 months. We’re recommending
the top end of the range on Count IV, which is sexual exploitation of a
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minor and 120 months. And we’re recommending the top end of the range
on Count VII, which is possession of depiction of minors engaged in
sexually explicit conduct, and that’s 83 months.
Count I is an indeterminate offense, also includes lifetime
supervision with the Department of Corrections. The other three counts
involve 36 months of supervision with the Department of Corrections. And
the state has delineated all of that in the Judgment and Sentence.
We are also asking that Court impose all of the conditions as laid out
in the Appendix H, as well as the no-contact order for life with all of the
victims in this matter. The state has also addressed forfeiture of all of the
items that were utilized by Mr. Lowe, either to facilitate the offense or to
document the images that are present in this case.
And ultimately, your Honor, we would ask that you follow the
recommendation. We believe that a trial based upon the input from the
victims in this case would have been devastating. And so while this is an
extremely egregious case, we believe that that recommendation is
appropriate and recognizes the impact that may otherwise have occurred,
even though each of these victims is incredibly strong and would have been
able to be here.
RP at 316-20. The State’s recommendation was presented without objection from
defense counsel.
After the State offered its recommendation, Victim A’s mother briefly addressed
the court. Victim A then made a statement, followed by her advocate who read Victim
A’s victim impact statement into the record.
Defense counsel tendered an argument in support of the agreed recommendation,
emphasizing that Mr. Lowe is more than just the acts he pleaded guilty to and that he
possessed several positive attributes. Exercising his right to allocution, Mr. Lowe
apologized to God, his family, Victim A, his wife, and the judge.
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Finally, the court issued its sentence:
[W]hat I prefer to do is collect my thoughts, I step off the bench, and we
don’t have this awkward where everybody has to be quiet, staring. So I’ll
take five, at most ten, and I’ll be back in.
....
So I want to start. This sounds awkward saying it, but I want to
thank some people. This case for me personally as a judge, just difficult
knowing it was going to happen, and the fact that the parties came together
and were able to reach a resolution. I was in here and out of the courtroom
during this process, and I didn’t see it, but you could feel it in the air. We
were down here, and you were upstairs, and I know that took a lot, a lot of
effort and involved a lot of people and a lot of emotions, and I have been in
all the parties’ shoes. I have been in your shoes. I have been in your shoes.
And throughout the course of this trial or throughout the course of me
hearing the hearings and jury selections, twice. It’s been a very
professional presentation. And I could see that it would be difficult to do.
Law enforcement that had to do this investigation, can’t be the same
after viewing the stuff, either, and seeing what has occurred here. The
victims, I just, I don’t know how to respond to that. The strength that they
have to come forward, the strength they have to continue to persevere is
something that I could never experience.
The statement where, talked about having super powers, how else
would you describe it? How else would you describe it? And when she
said in her statement she didn’t want to sound vindictive or vengeful, you
get to. You get to want him to rot in hell. I mean it’s actually therapeutic
to say that. I mean to say that not be vindictive, that’s the strength of
somebody I can’t even understand. So it is a super power.
And listening to her statement was extremely impactful on me. I
can’t ever be the same. I waved signs in the cold rain for this job, did first
three murder trials, nothing. Those victims and the family’s victims, the
victims are gone. The families have continuing pain. In this particular case
the victimization will never end. There are people that aren’t even born yet
that will be victims of your conduct. There are⎯the wide-spread
devastation just can’t be understated.
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Have been in both of your shoes, both counsel’s shoes. The process
doesn’t work, not with this case, but with all of the cases, if the courts don’t
give some respect to agreements that are reached. If defense can’t count on
the court’s giving some deference to agreements, agreements will never be
reached. The system will shut down. I mean it will literally shut down.
The Court also has that in mind.
....
The parties have reached an agreement for the bottom-of-the-range
sentence on Count I of 210 months. The Court struggles with that. As I
indicated, for the process to work, the Court has to respect them. And I’m
trying to think of the last time I didn’t follow an agreement. I haven’t
followed every agreement, but it’s been a while. I know the parties worked
hard on this, and I know the parties went upstairs and downstairs and with
the duly elected official and victims were involved. I want to respect that
process. But I don’t know who all is here. I know some of the people here
who spoke. Everybody in this room, their sentence is going to go on
forever. And so the Court is not going to follow the agreement.
And on Count I the Court’s going to impose the top of the range of
280 months. Count III, 60 months, top of the range. Count V, top of the
range, 120 months. And on Count VII, top of the range, 83 months.
I appreciate the process of a negotiation, but our community can’t be
the same. And I think this top of the range is appropriate. I will say that
accepting responsibility and resolving this and not having to put the people
through trial is a step, is a step. I was worried about trial. I was worried
about its impact. Having prepared for trial and the trial briefs that I read, I
was worried for mental health of people in the courtroom.
RP at 334-36, 339.
ANALYSIS
On appeal, Mr. Lowe contends the State’s recommendation at the sentencing
hearing breached the plea agreement, thereby violating his right to due process, and that
the trial court erred when it ordered several LFOs. Mr. Lowe raises additional issues in a
statement of additional grounds (SAG).
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APPEALABILITY
As a preliminary matter, we address the appealability of the State’s alleged breach
of the plea agreement. For the first time on appeal, Mr. Lowe asserts the State breached
the plea agreement, thereby violating his right to due process. Generally, a party may not
raise a new argument on appeal that was not presented to the trial court. In re Det. of
Ambers, 160 Wn.2d 543, 557 n.6, 158 P.3d 1144 (2007). To preserve for appellate
review a perceived error, a party must inform the trial court of the applicable rule of law
and afford the trial court an opportunity to correct any error. Smith v. Shannon, 100
Wn.2d 26, 37, 666 P.2d 351 (1983).
Notwithstanding, RAP 2.5(a)(3) allows an appellant to raise for the first time on
appeal a “manifest error affecting a constitutional right.” When a prosecutor breaches a
plea agreement, it “undercuts the basis for the waiver of constitutional rights implicit in
the plea.” State v. Tourtellotte, 88 Wn.2d 579, 584, 564 P.2d 799 (1977). The breach
of a plea agreement constitutes an error affecting a constitutional right for purposes of
RAP 2.5(a)(3).
However, as explained in State v. Sanchez, 146 Wn.2d 339, 346, 46 P.3d 774(2002), the fact that an error affects a constitutional right does not mean it can always be
raised for the first time on appeal. The error must also be “manifest.” Id. An error is
considered “manifest” if the appellant shows actual prejudice. State v. McFarland, 127
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Wn.2d 322, 333, 899 P.2d 1251 (1995). Whether an error is “manifest” must be decided
on a case-by-case basis, depending in large part on whether “the facts necessary to review
the claim are in the record.” Sanchez, 146 Wn.2d at 346.
As the appellant, Mr. Lowe carries the burden of demonstrating that the alleged
error is manifest. State v. O’Hara, 167 Wn.2d 91, 98, 217 P.3d 756 (2009). Rather than
address whether the alleged error is manifest, Mr. Lowe asserts RAP 2.5(a)(3) is
inapplicable because this court reviews breach of plea agreement claims de novo. Reply
Br. of Appellant at 1-2. We agree; constitutional claims are always reviewed de novo.
Yet, some constitutional claims cannot be raised for the first time on appeal.
Regardless of whether an error meets the requirements of RAP 2.5(a)(3), we retain
discretion under RAP 2.5(a) “to accept review of claimed error[s] not appealed as a
matter of right.” State v. Blazina, 182 Wn.2d 827, 834-35, 344 P.3d 680 (2015). Here,
we exercise that discretion and review Mr. Lowe’s unpreserved alleged error.
BREACH OF PLEA AGREEMENT
We review de novo claims that the State breached a plea agreement. State v.
Molnar, 198 Wn.2d 500, 513, 497 P.3d 858 (2021). A plea agreement is a contract.
State v. Mollichi, 132 Wn.2d 80, 91, 936 P.2d 408 (1997). However, because plea
agreements concern the fundamental rights of the accused, thereby implicating due
process protections, they are more than simple common law contracts. State v. Sledge,
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133 Wn.2d 828, 839, 947 P.2d 1199 (1997). “Due process requires a prosecutor to
adhere to the terms of the agreement.” Id. “A prosecutor is obliged to fulfill the State’s
duty under the plea agreement by making the promised sentencing recommendation. The
recommendation need not be made enthusiastically.” Id. at 840 (internal quotation marks
omitted).
“The prosecutor, as an officer of the court, is obliged to participate in the
sentencing proceedings, candidly answering the court’s questions in accordance with
RPC 3.3, and holding back no relevant information regarding the plea agreement.” Id.(citing RCW 9.94A.460). Simultaneously, however, the State has a concomitant duty not
to undermine the terms of the agreement either explicitly or through conduct
demonstrating an intent to evade the terms of the plea agreement. Id.Just because the parties reached an agreed recommendation does not mean the
sentencing court “[sh]ould be faced with a one-sided hearing.” State v. Talley, 134
Wn.2d 176, 186, 949 P.2d 358 (1998). “The State must be allowed to use descriptive
words in addition to stipulated facts because, while the State’s ‘recommendation need not
be made enthusiastically,’ it need not be made so unenthusiastically that it is unhelpful to
the sentencing court.” Molnar, 198 Wn.2d at 517 (emphasis omitted) (internal quotation
marks omitted) (quoting Sledge, 133 Wn.2d at 840). Thus, the mere mention of
aggravating facts does not automatically breach the plea deal. Id. at 516.
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Ultimately, “we must ‘review [the] prosecutor’s actions and comments objectively
from the sentencing record as a whole to determine whether the plea agreement was
breached.’” State v. Ramos, 187 Wn.2d 420, 433, 387 P.3d 650 (2017) (alteration in
original) (quoting State v. Carreno-Maldonado, 135 Wn. App. 77, 83, 143 P.3d 343(2006)). “A breach occurs when the State ‘undercut[s] the terms of the agreement
explicitly or implicitly by conduct evidencing an intent to circumvent the terms of the
plea agreement.’” Id. (alteration in original) (quoting Carreno-Maldonado, 135 Wn.
App. at 83). “Nevertheless, we review the State’s actions objectively, focusing ‘on the
effect of the State’s actions, not the intent behind them.’” Id. (quoting Sledge, 133
Wn.2d at 843 n.7).
Here, the State agreed to recommend the low end of the standard range. Because
the recommendation was for the low end, Mr. Lowe argues the State lacked justification
to present the following statements to the court:
• “But I think something that has been lost is that [Victim A] is not the only
victim in this case. There are two other victims.” RP at 316.
• “[O]ne of the things that was missing [from the victim impact statement]
was the introduction of Mr. Lowe to these other two young ladies. And I have no
doubt that that is because that is simply crushing to Victim A. Because not only
was she herself engaged in this awful, awful ongoing cycle of physical and sexual
abuse with Mr. Lowe, but she also made it possible for him to victimize these two
other girls.” RP at 317.
• “Mr. Lowe is the type of individual that we cannot have in our community,
because he is so good at manipulating others and making them believe that he is
the man that he presents to other adults in our community.” RP at 318.
• “[T]his is an extremely egregious case.” RP at 320.
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In addition to the foregoing comments, Mr. Lowe points to the statement that the
plea was “‘heavily negotiated’” to suggest that the State “never appeared fully on board”
with the agreement. Br. of Appellant at 13 (quoting RP at 331). However, that statement
was made by defense counsel, not the State. Even then, heavy negotiations do not
necessarily imply that the State was not “on board” with the agreement. Rather, it means
the resulting settlement took substantial effort. Moreover, informing the court that an
agreement was “heavily negotiated” is usually an implicit plea to the court to honor the
parties’ agreement.
With respect to Victims B and C, Mr. Lowe suggests that the State’s references to
them was improper because the charges he pleaded guilty to committing related only to
Victim A. Br. of Appellant at 14; Reply Br. of Appellant at 3. Mr. Lowe is incorrect. In
the second amended information, three of the four counts Mr. Lowe pleaded guilty to
committing listed Victim A as the victim. The last count, possession of child
pornography, did not list a victim. The statement of defendant on plea of guilty
acknowledged that the settlement was “agreed to by the State and victims.” Clerk’s
Papers (CP) at 78. The specification of “victims,” in the plural form, indicates that the
plea was intended to encompass crimes against all three victims, not just Victim A. This
intent is reinforced by Mr. Lowe’s personal statement that he possessed printed matter
“depicting minors,” again plural, “engaged in sexually explicit conduct.” CP at 84.
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Absent from the record is any indication that the plea was intended to exclude Victims B
and C.
Importantly, the State’s references to Victims B and C were brief and fairly
innocuous. This is not a case where the State went into excruciating detail about the
facts. See State v. Xaviar, 117 Wn. App. 196, 200, 69 P.3d 901 (2003); Sledge, 133
Wn.2d at 830; Carreno-Maldonado, 135 Wn. App. at 80-81. Rather, the State merely
reminded the court that there were three victims, not one. Such a brief reminder cannot
reasonably be read as undermining the plea agreement or advocating for a more severe
penalty than was negotiated by the parties. Considering the rights crime victims have in
Washington, and the expectation that the State will represent their views to the court, it
would have been unwonted for the State to make absolutely no mention of Victims B
or C. See WASH. CONST. art. I, § 35; ch. 7.69 RCW.
The next statement Mr. Lowe challenges is, “[T]his is an extremely egregious
case.” RP at 320. Alone, this statement does not support the plea agreement, but neither
does it undercut it. Rape of a child in the second degree (the offense that resulted in the
lengthiest sentence) is always extremely egregious. It is a class A felony punishable by
up to life imprisonment and is classified as a most serious offense for purposes of
Washington’s persistent offender statute. RCW 9A.44.076; RCW 9A.20.021(1)(a);
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RCW 9.94A.030(32)(a); RCW 9.94A.570. Unlike Xaviar, the State did not argue that
this was a more egregious case of rape of a child than other cases of rape of a child.
Instead, the State was merely expressing the obvious.
Importantly, the statement that “this is an extremely egregious case” needs to be
considered in the context of the prosecutor’s entire statement. The entire statement was:
And ultimately, your Honor, we would ask that you follow the
recommendation. We believe that a trial based upon the input from the
victims in this case would have been devastating. And so while this is an
extremely egregious case, we believe that that recommendation is
appropriate and recognizes the impact that may otherwise have occurred,
even though each of these victims is incredibly strong and would have been
able to be here.
RP at 320. The State was bolstering the parties’ agreement by acknowledging that the
parties had already taken into account any circumstances that might have justified a
higher sentence in reaching the agreed recommendation. In context, the statement
actually disclaims any basis for imposing a higher sentence.
Next, Mr. Lowe assigns error to the prosecutor’s statement, “[N]ot only was
[Victim A] engaged in this awful, awful ongoing cycle of physical and sexual abuse with
Mr. Lowe, but she also made it possible for him to victimize these two other girls.” RP at
317. This statement was made in the context of mentioning that Mr. Lowe was able to
gain access to Victims B and C through Victim A.
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This statement was the other part of the State’s brief reminder to the court that
there were three victims, not one. As previously discussed, the statement was brief and
fairly innocuous. As to the State’s comment that Victim A was “engaged in this awful,
awful ongoing cycle of physical and sexual abuse,” rape of a child is always awful and
the crimes Mr. Lowe pleaded guilty to committing occurred over a five-year span. RP at
317. When viewed in context, the description of the crimes as “awful” and an “ongoing
cycle” did not undermine the plea agreement.
The final statement Mr. Lowe challenges is, “Mr. Lowe is the type of individual
that we cannot have in our community.” RP at 318. In support of the appropriateness of
the statement, the State relies on Molnar. In Molnar, the Supreme Court approved the
use of such value-laden descriptors, but preferred the State not use the language of
unrequested statutory aggravators. 198 Wn.2d at 518-19. Because this statement did not
use any language from statutory aggravators, Molnar supports the State’s argument.
However, Molnar did not involve an agreed sentencing recommendation.
Acknowledging this aspect of Molnar’s holding, the State argues that Molnar is
still applicable because the State’s comment was an appropriate response to the letters of
support from Mr. Lowe’s friends and family. Br. of Resp’t at 20. While these letters
asked for “mercy” and “leniency,” id., and sought to bolster Mr. Lowe’s character, none
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expressly advocated for a sentence other than what the parties had agreed to recommend.2
Had any of the letters expressly asked for a sentence below the standard range, mentioned
the statutorily-recognized mitigating factors in RCW 9.94A.535(1), or advocated for
leniency based on the purposes of the Sentencing Reform Act of 1981, chapter 9.94A
RCW, stated in RCW 9.94A.010, then perhaps, under Molnar, the State’s comment
would have been an appropriate response to those letters.
Of the statements challenged by Mr. Lowe, the statement, “Mr. Lowe is the type
of individual that we cannot have in our community,” RP at 318, is the only statement
that can be read as potentially undercutting the plea agreement. However, given the
totality of the circumstances, this single, questionable statement is insufficient to
constitute a breach of the plea agreement. Just because the parties reached an agreed
recommendation does not mean the sentencing court “[sh]ould be faced with a one-sided
hearing.” Talley, 134 Wn.2d at 186.
When taking these statements into consideration, in addition to the single
questionable statement highlighted by Mr. Lowe, the facts before us are far less egregious
than those in Xaviar. Similar to Xaviar, the parties agreed to a low-end standard range
sentence. Xaviar, 117 Wn. App. at 198. However, unlike the record before us, during
2
The only letter that appeared to advocate for a different sentence came from Mr.
Lowe’s father who asked that one “part” of the sentence include community service,
while still acknowledging that his son still needed to serve time in prison: “I’m sure his
time in prison will be pivotal in changing his behavior.” CP at 199.
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Mr. Xavier’s sentencing, the State presented new facts and made seven statements that
we viewed as undercutting the plea deal. Further, unlike Xaviar, here the prosecutor did
not highlight the dismissed charges or the sentence it would have requested but for the
plea agreement, did not comment on any lack of remorse, did not attempt to compare Mr.
Lowe’s case to any others it had prosecuted, nor did he inject any new facts that were not
already before the court.
Importantly, when looking to the State’s recommendation as a whole, it repeatedly
urged the trial court to follow the recommendation:
• “[W]e came to the conclusion that it was appropriate for us to go forward and
to recommend the bottom end of the range on Count I, which is the rape of a
child in the second degree count, and we believe that that is very appropriate.”
RP at 318.
• “[T]hat is why we are recommending 210 months as well.” RP at 319.
• “And ultimately, your Honor, we would ask that you follow the
recommendation.” RP at 320.
• “We believe that that recommendation is appropriate and recognizes the impact
that may otherwise have occurred.” RP at 320.
Moreover, the statements Mr. Lowe challenges were clearly made in the context of
explaining the balancing process the State considered in reaching the plea deal:
In resolving this case, the state heavily weighed the impact that a trial
would have, not just on Victim A but also on Victim B and on Victim C.
And ultimately, despite the gruesome nature of this case, as your Honor is
fully aware from all of the documents that have been submitted, we came to
the conclusion that it was appropriate for us to go forward and to
recommend the bottom end of the range on Count I, which is the rape of a
child in the second degree count, and we believe that that is very
appropriate.
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RP at 318. These facts also were not present in Xaviar.
The State did not evince an intent to undercut the plea agreement. Rather, it went
into little detail about the underlying facts, that were already before the court via the
probable cause affidavit attached to the presentence investigation, and repeatedly
requested that the trial court follow the agreed-upon recommendation. The State’s
recommendation during Mr. Lowe’s sentencing hearing was not violative of the plea
agreement.
LFOS
Mr. Lowe contends that because he is indigent the trial court erred when it ordered
the VPA, the DNA collection fee, and community custody supervision fees. The State
concedes.
As explained in State v. Ellis, 27 Wn. App. 2d 1, 16-17, 530 P.3d 1048 (2023),
Mr. Lowe is entitled to the benefit of recent changes in the law requiring that the $500
VPA, $100 DNA fee, and community supervision fees not be imposed on indigent
defendants. Accordingly, we remand for the trial court to strike the VPA, the DNA
collection fee, and the community custody supervision fees.
SAG
Mr. Lowe raises three additional issues in his SAG. None merit relief.
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No. 39588-0-III
State v. Lowe
Mr. Lowe’s first issue claims the judge was biased and had already made up his
mind prior to the hearing. In support of his argument, Mr. Lowe cites the judge’s
statement:
Before we adjourn, for those that presented, those that have been victimized
and haven’t presented, those that are members of the families and friends of
those that have been victimized, you’ve been victimized as well. Thank
you for your presentations today. Thank you for your impact statements.
They made an impact. I had highlights throughout. She identified herself,
[Victim A]’s and her counselors, things that I was going to read out loud,
things that changed me reading. I didn’t do that. Not sure why, but I
didn’t. Thank you. You guys have super powers.
RP at 340-41. Mr. Lowe emphasizes the judge’s statement that he “had highlights
throughout” to suggest the judge had already made up his mind. This statement does not
logically support Mr. Lowe’s inference. At most, it supports an inference that the judge
came prepared to sentencing, having already reviewed the written materials submitted by
both sides.
Mr. Lowe also highlights as evidence of bias the judge’s statement about how this
case impacted him more than other traumatic cases:
And listening to [Victim A’s] statement was extremely impactful on
me. I can’t ever be the same. I waved signs in the cold rain for this job, did
first three murder trials, nothing. Those victims and the family’s victims,
the victims are gone. The families have continuing pain. In this particular
case the victimization will never end. There are people that aren’t even
born yet that will be victims of your conduct. There are⎯the wide-spread
devastation just can’t be understated.
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No. 39588-0-III
State v. Lowe
RP at 335-36. Mr. Lowe fails to explain how this statement evinced improper bias. The
judge merely explained how he was personally impacted by listening to Victim A’s
statement during the sentencing hearing. “Passing treatment of an issue or lack of
reasoned argument is insufficient to merit judicial consideration.” Holland v. City of
Tacoma, 90 Wn. App. 533, 538, 954 P.2d 290 (1998).
Next, Mr. Lowe contends he received ineffective assistance from his counsel. Mr.
Lowe claims his counsel was deficient by failing to mention several mitigating factors
during sentencing. This argument fails to merit consideration due to Mr. Lowe’s failure
to apply Strickland.3 In re Matter of Rosier, 105 Wn.2d 606, 616, 717 P.2d 1353 (1986)
(quoting United States v. Phillips, 433 F.2d 1364, 1366 (8th Cir. 1970) (“[N]aked
castings into the constitutional sea are not sufficient to command judicial consideration
and discussion.”)). It also fails to merit review in part because it relies on facts outside
the record. On direct appeal, the evidence this court considers consists of “(1) a ‘report
of proceedings’, (2) ‘clerk’s papers’, (3) exhibits, and (4) a certified record of
administrative adjudicative proceedings.” RAP 9.1(a).
Mr. Lowe also claims ineffective assistance of counsel due to only one of his two
assigned lawyers appearing at the sentencing hearing and because counsel did not object
to the judge’s “breach of the plea agreement.” SAG at 5. Again, Mr. Lowe fails to
3
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674(1984).
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No. 39588-0-III
State v. Lowe
support his claim with citations to authority and argument based on that authority.
Furthermore, the judge is not a party to the plea agreement and Mr. Lowe acknowledged
his understanding that the court did not have to follow anyone’s recommendation
Lastly, Mr. Lowe asserts that he had inadequate time to consider the plea
agreement. This issue relies entirely on facts outside the record and therefore is not
properly before this court. A personal restraint petition is the proper avenue for
addressing arguments based on facts outside of the record. State v. Estes, 188 Wn.2d
450, 467, 395 P.3d 1045 (2017).
We affirm Mr. Lowe’s sentence and remand to the trial court with directions to
excise the VPA, the DNA collection fee, and the community custody supervision fees
from the judgment and sentence.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
Cooney, J.
WE CONCUR:
Lawrence-Berrey, C.J. Staab, J.
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